7.  The applicant was born in 1961 and lives in Bratislava.
8.  Between 1995 and 1998 the applicant was the Director of the Slovak Information Service (Slovenská informačná služba), which is the Slovakian intelligence service.
9.  On 31 August 1995 Mr M. Kováč, the son of the then President of the Slovak Republic, was forcibly taken from Slovakia to an Austrian village in the vicinity of the Slovakian border. Following a phone call the Austrian police found him intoxicated in a car. He was detained as the Munich District Court (Amtsgericht) had issued an arrest warrant against him.
10.  On 20 February 1996 the Vienna Court of Appeal (Oberlandesgericht) refused to extradite Mr Kováč to Germany for the purpose of his prosecution there. The Vienna Court of Appeal held, inter alia, that witness statements by a former member of the Slovak Information Service and by the President of the Slovak Republic supported Mr Kováč’s allegation that members of the Slovakian secret service had brought him to Austria against his will in the context of political controversies in Slovakia.
11.  The Slovakian police started an investigation into the incident and expressed the view that several offences had been committed in that context.
12.  On 3 March 1998 Mr V. Mečiar, the Prime Minister, who at the time, under Article 105 § 1 of the Constitution, exercised several powers entrusted to the President of the Slovak Republic, delivered a decision on amnesty (rozhodnutie o amnestii), the relevant parts of which read:
“The Prime Minister of the Slovak Republic, in the exercise of his powers under Article 105 § 1 and Article 102(i) of the Constitution of the Slovak Republic, on the occasion of the fifth anniversary of the establishment of the Slovak Republic, gives the following decision on amnesty as a contribution to reaching civic reconciliation and in the interest of eliminating possible sources of tension in society: ...
Article VI
I order that criminal proceedings should not be started and, if they have already been started, should be discontinued in respect of criminal offences committed in the context of the notification of the abduction of Michal Kováč junior abroad.”
The decision was published in the Collection of Laws on 3 March 1998.
13.  On 7 July 1998 the following decision on amnesty given on the same day by Mr V. Mečiar in his capacity as Acting President of the Slovak Republic was published in the Collection of Laws:
“The Prime Minister of the Slovak Republic, in the exercise of his powers under Article 105 § 1 and Article 102(i) of the Constitution of the Slovak Republic, in the interest of eliminating disputes as regards the interpretation of the decision on amnesty adopted on 3 March 1998 ..., declares the following decision on amnesty: ...
Article II
I order that criminal proceedings should not be started and, if they have already been started, should be discontinued concerning the suspicion of criminal offences allegedly committed in the context of the reported abduction of Ing. Michal Kováč ... abroad, which allegedly occurred on 31 August 1995.”
14.  On 18 September 1998 the police investigator decided not to pursue the case concerning the above offences which, as the decision stated, had been committed by unknown perpetrators. Reference was made to the decision on presidential amnesty of 7 July 1998 and to Article 11 § 1(a) and Article 159 § 2 of the Code of Criminal Procedure.
15.  In September 1998 the applicant was elected as a member of the National Council of the Slovak Republic (the Parliament) for a four-year term.
16.  On 8 December 1998 the newly appointed Prime Minister, Mr M. Dzurinda, in his capacity as Acting President of Slovakia, delivered a new decision on amnesty in the above case. The decision was published in the Collection of Laws on the same day and it reads:
“The Prime Minister of the Slovak Republic, in the exercise of his powers under Article 105 § 1 and Article 102(i) of the Constitution of the Slovak Republic, in the interest of eliminating disputes as to the conformity with the Constitution of the decisions on amnesty of 3 March 1998 ... and 7 July 1998 ..., declares the following decision on amnesty:
Article I
Article ... VI of the decision on amnesty of 3 March 1998 ... and Article ... II of the decision on amnesty of 7 July 1998 ... are revoked.”
17.  In February 1999 the daily newspaper Sme published declassified parts of a report on the activities of the Slovak Information Service submitted by its newly appointed Director. The report stated, inter alia, that the Slovak Information Service had taken extensive measures with a view to concealing its involvement in the abduction of Mr Kováč and in order to hamper an appropriate investigation into the circumstances surrounding that incident.
18.  After the relevant parts of the above decisions on the presidential amnesty of 3 March 1998 and of 7 July 1998 had been revoked, a police investigator, on 26 February 1999, informed the National Council of the Slovak Republic that the applicant was suspected of having committed several offences in the context of the abduction of Mr Kováč. As the applicant enjoyed immunity as a member of Parliament, the investigator requested that the National Council give its consent to his prosecution. In a decision of 9 April 1999 the National Council granted the investigator’s request.
19.  On 9 April 1999 the police investigator started criminal proceedings against the applicant. The applicant was accused of several offences on the ground that he had been involved, in his capacity as Director of the Slovak Information Service, in the abduction of Mr Kováč in 1995.
20.  On 15 April 1999 the National Council gave its consent to the applicant’s detention on remand. On the same day the Bratislava 1 District Court (Okresný súd) detained the applicant on remand with reference to Article 67 § 1(b) of the Code of Criminal Procedure. The decision stated that the applicant might influence the witnesses or otherwise hamper the investigation.
21.  The applicant lodged a complaint. He argued, inter alia, that the Prime Minister’s above-mentioned decision of 8 December 1998 was contrary to the Constitution. The Bratislava Regional Court (Krajský súd) dismissed the complaint on 17 May 1999. The decision stated that the applicant’s case fell within the jurisdiction of the Constitutional Court. The Regional Court further held that the applicant had been remanded in custody in accordance with the relevant law.
22.  On 27 May and 15 June 1999 the applicant filed an application for release. On 15 June 1999 the Bratislava 1 District Court dismissed it. The decision stated that the applicant had attempted to contact other members of the Slovak Information Service and that he might influence witnesses in the event of his release.
23.  On 17 June and 12 July 1999 the applicant lodged a complaint against that decision. On the latter date he argued, with reference to the Constitutional Court’s decision no. I. ÚS 30/99 of 28 June 1999 (see “Proceedings before the Constitutional Court” below), that the decision to quash the relevant part of the presidential amnesty had been contrary to the Constitution. The applicant further argued that no relevant reason existed for his detention.
24.  On 19 July 1999 the Bratislava Regional Court ordered the applicant’s release. The Regional Court found that most of the relevant evidence had been taken and that the assumption that the applicant could influence witnesses or his co-accused was no longer justified. The applicant was released on that day.
25.  The Minister of Justice lodged a complaint in the interests of the law against that decision. On 10 September 1999 the Supreme Court (Najvyšší súd) dismissed the complaint. In the Supreme Court’s view, the Regional Court had proceeded in accordance with the relevant provisions of the Code of Criminal Procedure. The Supreme Court’s decision further stated that the case was at a preliminary stage and that it was therefore for the prosecuting authorities dealing with it to decide what conclusions should be drawn from the Constitutional Court’s decision of 28 June 1999, according to which the Constitution did not allow the quashing of an earlier amnesty.
26.  On 27 November 2000 the applicant and twelve other persons were indicted for several offences before the Bratislava III District Court.
27.  On 29 June 2001 the District Court discontinued the criminal proceedings against the applicant and the other accused with reference to Article 188 § 1(c), Article 172 § 1(d) and Article 11 § 1(f) of the Code of Criminal Procedure. The District Court addressed as a preliminary issue the validity of the above decisions on amnesty. Its decision stated that the Prime Minister’s decision of 8 December 1998 to revoke the relevant provisions of his predecessor’s decision to grant an amnesty in relation to the offences imputed to the applicant and his co-accused was null and void and that it had no basis in the Code of Criminal Procedure. The decision on amnesty issued on 3 March 1998 was final, irrevocable and not subject to review. Both the criminal character of the action in issue and any criminal liability in that respect had been thereby removed and there was no provision in Slovakian law by which that position could be changed.
28.  On 5 June 2002 the Bratislava Regional Court dismissed a complaint by the public prosecutor against the District Court’s decision. It also dismissed a complaint by the applicant and his co-accused concerning the relevant legal provisions on which the decision to discontinue the proceedings had been based.
29.  With reference to Article 11 § 1(a) of the Code of Criminal Procedure, the Regional Court held that the prosecuting authorities were obliged, regardless of their opinion, to respect the amnesty granted by the Prime Minister in the exercise of certain powers vested in the President. The granting of amnesty was the manifestation of the individual will of a person entitled to take such an action under the relevant provisions of the Constitution. In the Regional Court’s view, there was no scope for subsequently altering such will.
30.  The Prosecutor General lodged a complaint in the interests of the law against the Regional Court’s decision.
31.  The complaint was dismissed by the Supreme Court on 20 December 2002. The decision stated that the amnesty of 3 March 1998 relating to the offences imputed to the applicant and his co-accused prevented the criminal proceedings against them from being pursued. The Supreme Court shared the lower courts’ view that the investigator’s decision of 18 September 1998 not to pursue the case was final and that the Code of Criminal Procedure contained no provision permitting the proceedings concerning the offences in question to be resumed after the matter had become res judicata.
32.  The Supreme Court expressed the view that the Constitutional Court’s decision no. I. ÚS 30/99 of 28 June 1999 had confirmed the position in the case on the basis of legal theory and existing practice. As a general rule, a decision on amnesty published in accordance with the relevant requirements could not be quashed. While it was true that the Constitutional Court’s finding did not directly affect the contested decision on amnesty of 8 December 1998, the interpretation by the Constitutional Court of the relevant issue was decisive when determining whether a particular authority or person had exceeded their powers. The decisions of the lower criminal courts to discontinue the criminal proceedings had therefore been in conformity with Article 1 of the Constitution, which defined the Slovak Republic as a State based on the rule of law.
33.  The Supreme Court shared the interpretation by the Constitutional Court (decision no. I. ÚS 48/99) of the terms of the amnesty decisions of 3 March and 7 July 1998. It admitted that the rather unusual phrasing of those decisions had raised difficulties as to their interpretation. Ordinary courts were obliged to observe the principle in dubio pro reo when interpreting and implementing a decision on amnesty. The decisions on amnesty of 3 March and 7 July 1998 had been issued in accordance with the legal order of Slovakia. That was not the case, however, as regards the subsequent decision to revoke the relevant parts of those decisions. The courts were obliged to abide by the law in force.
34.  On 17 May 1999 forty-six members of parliament filed a petition for interpretation of Article 102(i) of the Constitution. They challenged the decisions on amnesty of 3 March and 7 July 1998 as being an abuse of power and contrary to the principles of a State based on the rule of law. The plaintiffs sought a finding that in the exercise of all his or her powers the President of Slovakia was limited by the solemn pledge to act in the interests of the citizens and to respect and protect the Constitution and other laws.
35.  On 17 June 1999 the Constitutional Court (First Chamber) dismissed the petition as falling short of the formal requirements. Since the decisions in issue in no way affected the powers of Parliament and the rights of its members, there existed no legally relevant dispute over the interpretation of Article 102(i) of the Constitution calling for interpretation of that provision.
36.  On 19 February 1999 thirty-seven members of parliament requested the Constitutional Court to give an interpretation of Article 102(i) of the Constitution concerning the President’s right to grant an amnesty. They argued that the quashing of a presidential decision on amnesty had no legal basis. The alleged reason for the decision of 8 December 1998 had been the elimination of disputes concerning the conformity with the Constitution of the decisions of 3 March 1998 and 7 July 1998. However, only the Constitutional Court was entitled to determine such disputes.
37.  In his submission to the Constitutional Court the Prime Minister, M. Dzurinda, argued that the point in issue was not governed by the Constitution. It followed from the principles of a State based on the rule of law, as laid down in Article 1 of the Constitution, that decisions which were not subject to any review should be permissible in exceptional cases only. It was generally known that the Slovak Information Service and its representatives were suspected of being involved in the offences covered by the amnesty. It was therefore in the general interest to have the matter elucidated. His predecessor’s decision to grant the amnesty in issue had been an abuse of power and contrary to the interests of the citizens. Observance of the principles of a State based on the rule of law required that the situation be remedied. The President or the Acting President was allowed to use the rights vested in him or her by the Constitution only within the scope of the constitutional principles in force in Slovakia. Reference was made to Declaration 47/133 adopted by the General Assembly of the United Nations on 18 December 1992. The Prime Minister argued that a decision on amnesty could be amended or quashed exceptionally where the contents of such a decision were contrary to the Constitution and the principles on which it was based.
38.  On 28 June 1999 the First Chamber of the Constitutional Court adopted, under Article 128 § 1 of the Constitution, decision no. I. ÚS 30/99, the operative part of which reads:
“... interpretation of Article 102 § 1(i) of the Constitution of the Slovak Republic:
The right of the President of the Slovak Republic under Article 102 § 1(i) of the Constitution of the Slovak Republic consists in granting amnesty in any of the forms set out in that Article.
However, this right does not authorise the President of the Slovak Republic to amend, in any way whatsoever, a decision on amnesty which has been published in the Collection of Laws of the Slovak Republic.”
39.  Decision no. I. ÚS 30/99 was published in the Collection of Laws on 24 July 1999. In it the Constitutional Court (First Chamber) had recourse to an extensive linguistic, logical, historical and systematic interpretation of the provision in issue. It stated that the Code of Criminal Procedure did not envisage the possibility of resuming criminal proceedings following a decision to quash an amnesty. Reference was also made to Article 17 § 2 of the Constitution and to Article 4 § 1 of Protocol No. 7 to the Convention. As to UN Declaration 47/133, it related to the granting of amnesty and did not imply that an amnesty which had been granted should be revoked.
40.  The prerogative of granting an amnesty and the obligation to comply with it confirmed the separation of powers in a State founded on the rule of law, based on the principle of legal certainty and the necessity to protect acquired rights. An amnesty (individual pardon) did not belong to the category of fundamental rights and freedoms of citizens and there existed no legal entitlement to have it granted. The President was therefore under no obligation to grant an amnesty. By making use of the right to grant amnesty, the President prevented the judicial branch of power from exerting an effect on citizens in certain cases. As a representative of the executive branch of power, the President took over the responsibility for such a decision.
41.  Admittedly, the alleged offences covered by the amnesty in issue were of a serious nature. However, no particular offence was excluded from the President’s right to grant amnesty under Slovakian law. An amnesty was an individual act in respect of which no remedy was available. No retroactive effect of the decision on amnesty of 8 December 1998 could therefore be envisaged.
42.  In the decision of 28 June 1999 the Constitutional Court concluded that Article 102 § 1(i) of the Constitution could not serve as a basis for any decision by which the President of the Slovak Republic adversely affected, from the point of view of criminal law, the position which a person had acquired as a result of an amnesty.
43.  In a petition of 22 April 1999 the applicant complained to the Constitutional Court that his rights, including those under Article 17 § 2 of the Constitution, had been violated in that the criminal proceedings against him had been pursued despite the decisions on amnesty given on 3 March 1998 and 7 July 1998.
44.  The Second Chamber of the Constitutional Court rejected the petition on 15 July 1999 (decision no. II. ÚS 69/99). The decision stated, inter alia, that the decisions on amnesty of 3 March 1998 and 7 July 1998 were phrased in such a way that they did not rule out the applicant’s prosecution for the offences in issue and his detention on remand, regardless of the decision of 8 December 1998.
45.  Furthermore, the decision on the interpretation of the relevant provisions of the Constitution set out in decision no. I. ÚS 30/99 of 28 June 1999 was of an abstract nature and had no legal effect in respect of any actions, omissions or decisions of the State authorities which had given rise to the point at issue. Decision no. I. ÚS 30/99 of 28 June 1999 could not be effective prior to its adoption and publication in the Collection of Laws. In any event, it did not affect the decision on amnesty of 8 December 1998. The above conclusions were later published in the Collection of Judgments and Decisions of the Constitutional Court.
46.  On 24 April 1999 the applicant complained that the authorities which had taken decisions leading to his detention (Parliament, police investigators, the Regional Prosecutor in Bratislava and the Bratislava 1 District Court) had infringed his rights under Article 17 of the Constitution.
47.  The Constitutional Court (Second Chamber) declared the submission inadmissible on 15 July 1999. It held that the proceedings in issue were still pending. The above authorities had acted in accordance with the relevant law and there was no indication that the applicant’s rights under Article 17 of the Constitution had been violated.
48.  On 22 June 1999 the applicant lodged another petition with the Constitutional Court. He alleged a violation of Article 17 § 2 of the Constitution in that he had been prosecuted for offences which were covered by the amnesty of 3 March and 7 July 1998.
49.  On 18 August 1999 the Second Chamber of the Constitutional Court dismissed the petition as being manifestly ill-founded. The decision stated, inter alia, that decision no. I. ÚS 30/99 of 28 June 1999 concerned merely the interpretation of the relevant provision of the Constitution. It did not, as such, retroactively affect the validity of the decision on amnesty of 8 December 1998 as the decision on the interpretation of the relevant provisions of the Constitution had produced effects only following its publication in the Collection of Laws on 24 July 1999. Finally, the decisions on amnesty of 3 March and 7 July 1998 respectively concerned offences relating to the “notification” of the abduction of Mr Kováč and his “reported abduction”, but not any offences committed in the context of his abduction as such. The prosecution of the applicant for the last-mentioned offences was therefore permissible in any event.
50.  On 22 July 1999 the First Chamber of the Constitutional Court declared partly admissible a complaint by one of the applicant’s co-accused (case no. I. ÚS 48/99).
51.  The decision addressed, inter alia, the question whether the Government had authorised the Prime Minister, as required by Article 105 § 1 of the Constitution, to give a decision on amnesty on 8 December 1998. The Office of the Government had submitted only a decision of 3 March 1998 authorising Mr V. Mečiar to exercise certain presidential powers including those under Article 102(i) of the Constitution. No separate decision to similar effect had been submitted indicating that the new Government set up following the parliamentary election held in September 1998 had authorised its Prime Minister, Mr M. Dzurinda, to exercise the presidential power in issue. The Constitutional Court concluded that the decision on amnesty of 8 December 1998 had been given contrary to Article 2 § 2 of the Constitution and was therefore not a legal act (non negotium).
52.  On 12 October 1999 the Constitutional Court allowed both Mr M. Dzurinda, the Prime Minister, and the applicant to intervene as third parties in the proceedings. The former alleged that he had been duly authorised to use the presidential power under Article 102(i) of the Constitution. The Constitutional Court held that it had determined that issue in its above-mentioned decision of 22 July 1999.
53.  On 20 December 1999 the First Chamber of the Constitutional Court found a violation of the petitioner’s rights under Article 17 § 2 of the Constitution in that the investigator had brought criminal proceedings against him, on 1 February 1999, notwithstanding that the offences of which he had been accused were covered by the amnesty of 3 March and 7 July 1998. The Constitutional Court quashed the investigator’s decision. As a result, the criminal proceedings against the petitioner were dropped.
54.  The investigator’s decision of 18 September 1998 to discontinue the criminal proceedings was final and could not be changed under Slovakian law.
55.  The Constitutional Court also addressed the question as to the date from which its above-mentioned decision no. I. ÚS 30/99 was effective. That decision concerned the interpretation of Article 102 § 1(i) of the Constitution and, as such, was of a declaratory nature. Where relevant, such a decision was effective ex tunc. The fact that a public authority, prior to the finding of the Constitutional Court, had considered its actions to be in conformity with the Constitution could not serve as a justification for such actions once the Constitutional Court had found that this was not the case.
56.  The Constitutional Court (First Chamber) dismissed the argument that its decision no. I. ÚS 30/99 had been effective only from the moment of its publication in the Collection of Laws on 24 July 1999. In particular, neither the Constitutional Court Act 1993 nor the Collection of Laws Act 1993 provided for compulsory publication in the Collection of Laws of a decision under Article 128 § 1 of the Constitution. The binding effect of similar decisions could not, therefore, depend on whether or not they were published in the Collection of Laws.
57.  The judgment no. I. ÚS 48/99 of 20 December 1999 was later published in the Collection of Judgments and Decisions of the Constitutional Court. The conclusion was highlighted, as relevant case-law, that prosecution of a person for actions whose criminal character had ceased to exist was contrary to Article 17 § 2 of the Constitution.
(b) Separate opinion of Judge Kľučka
58.  Judge J. Kľučka disagreed with the above-mentioned decisions by the First Chamber of the Constitutional Court composed of three judges. At that time the relevant statutory provisions did not allow separate opinions to be published together with the judgment. His dissenting opinion was later published in the journal Justičná revue (no. 2/2000).
59.  The view was expressed in the opinion that judgment no. I. ÚS 48/99 departed from the previous (and established) practice concerning the requirement to exhaust the other available remedies prior to lodging a complaint with the Constitutional Court. Such a decision had caused legal uncertainty and could lead to confusion as to which authorities were primarily charged with the protection of individuals’ fundamental rights and freedoms. Such departure from the previous practice of the Constitutional Court had no objective justification.
60.  After delivery of the Constitutional Court’s decision no. I. ÚS 30/99, the Press Agency of the Slovak Republic, on 9 July 1999, issued a statement expressing the standpoint of the Prosecutor General’s Office. The statement indicated that the interpretation by the Constitutional Court of Article 102(i) of the Constitution was to apply for the future and had no effect on the binding character of decisions on amnesty which had been previously published in the Collection of Laws.
61.  There had been no reason for the proceedings against the applicant to be discontinued since a grammatical and logical interpretation of the relevant provisions of the amnesty decisions of 3 March and 7 July 1998 led to the conclusion that those decisions did not apply to the criminal offence of forcible abduction of Mr Kováč junior to a foreign country, committed on 31 August 1995, as such or to other criminal offences which the criminal proceedings concerned.
62.  Finally, reference was made to several sets of proceedings pending before the Constitutional Court, whose outcome was decisive for the further examination of the charges against the applicant and his co-accused.
63.  After the applicant’s release a group of members of parliament attempted, on several occasions, to revoke the above-mentioned decisions on amnesty by Mr Mečiar by tabling a draft constitutional law to that effect. The attempts failed as the proposal was not supported by the required majority of ninety members of parliament.